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en-usTechdirt. Stories filed under "rsc"https://ii.techdirt.com/s/t/i/td-88x31.gifhttps://www.techdirt.com/Tue, 11 Dec 2012 13:35:27 PSTRep. Marsha Blackburn's Staffer Lashes Out At Derek Khanna And RSC ReportMike Masnickhttps://www.techdirt.com/articles/20121208/00162721312/rep-marsha-blackburns-staffer-lashes-out-derek-khanna-rsc-report.shtml
https://www.techdirt.com/articles/20121208/00162721312/rep-marsha-blackburns-staffer-lashes-out-derek-khanna-rsc-report.shtmlsponsoring SOPA, despite the fact that almost everything she complained about in her mythical version of net neutrality was true of SOPA. For example, she talked about the wonders of the internet (yay!) and sites like Facebook, YouTube and Twitter, and talked about how they've been built up entirely without government intervention (ignoring, of course, the government's rather large role in the creation of the internet, but let's leave that aside). And then she states: "There has never been a time that a consumer has needed a federal bureaucrat to intervene (in the world wide web)." And she worries how under the net neutrality she fears "the next Facebook innovator" may "have to go apply with the government to get approval to develop a new application."

Yet, of course, when it comes to SOPA and copyright, she ignores these very same arguments. SOPA itself was very much about federal bureaucrats, including Rep. Marsha Blackburn, intervening in how the internet was to work. And, of course, the very nature of copyright these days is that it means that innovators often do have to effectively get "approval" from the government to develop a new product. In fact, the former director of the US Copyright Office, Ralph Oman, recently stated specifically, in the Aereo case, that he believed the intention of copyright law was that new technologies must first get Congressional approval before they can be considered legal -- and this appears to be Blackburn's position as well.

Of course, this blatant contradiction is explained away easily enough, since her district is up against Nashville, Tennessee, a major outpost of the recording industry. Given that, it was no surprise to see it confirmed that she was one of the leading voices among Republican members who led the Republican Study Committee to first retract Derek Khanna's "copyright myths" policy brief, and then to push to make sure that he was not retained as an RSC staffer.

"She does not believe the radical positions espoused in a recent so-called policy paper regarding copyright," Reynard said. "Conservatives aren't going to tolerate the ideology that copyright violates nearly every tenant of laissez-faire capitalism, that copyright is a government monopoly, and that property rights don't matter anymore."

"We were concerned that the RSC's Executive Director, Paul Teller, and Congressman Jim Jordan associated themselves with these bizarre ideas and were happy to see them denounce the process and the ideas in the paper after it was published," he added.

So much lies and distortions in two short paragraphs. First of all, the ideas in the paper were hardly "radical." They've been widely discussed for quite some time outside the halls of Congress, but they rarely make it inside, because Blackburns' close friends at the RIAA and MPAA do a bang up job keeping them out. Second, the idea that "conservatives aren't going to tolerate the ideology that copyright violates nearly every tenant of laisez-faire capitalism" is kinda laughable, since an awful lot of conservatives not only "tolerate" the idea, they believe it to be true. In fact, as we've noted, there's an entire new book making the "conservative" case for massive copyright reform (even going beyond Khanna's so-called "radical" suggestions). Furthermore, an awful lot of prominent conservative thinkers have come out in favor of the report. So whether or not Blackburn "tolerates" it, doesn't have much bearing on whether or not "conservatives" tolerate it. It just seems to show that Blackburn may be completely out of touch and out of step with those she claims to represent.

As for the idea that copyright is not a government monopoly -- well, that's just wrong. I mean, there's nothing to argue here. It's a simple fact: a copyright is a monopoly. In the earlier days of the US, the founders even directly referred to them as monopolies. So I'm not even sure how this point is debatable, unless you're entirely ignorant.

Then there's the idea that "property rights don't matter anymore." That's just weird, because no one suggested that at all. In fact, if you actually read Khanna's paper, he argues quite the opposite. Property rights matter a great deal. The problem with copyright is that it's a restriction on people's private property rights.

Finally, while the RSC did retract the report, after heavy pressure from various lobbyists, at no time did they "denounce the process and the ideas in the paper." They simply argued that it did not properly represent the views of all of their members. One assumes this includes Marsha Blackburn, but judging from the comments from her staffer, I would think that the RSC would not wish to associate itself with the pure and blatant ignorance coming out of her office. We can argue the merits of the paper (and, in fact, we've been trying to do that in a series of posts). But to pretend the paper says stuff that it doesn't... and to argue things that are clearly factually 100% false is no way to go about making policy.

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]]>can't-deal-with-realityhttps://www.techdirt.com/comment_rss.php?sid=20121208/00162721312Thu, 6 Dec 2012 08:56:52 PSTRepublican Study Committee Dumps Derek Khanna, Author Of Copyright Reform Brief, After Members ComplainMike Masnickhttps://www.techdirt.com/articles/20121206/08510021258/republican-study-committee-dumps-derek-khanna-author-copyright-reform-brief-after-members-complain.shtml
https://www.techdirt.com/articles/20121206/08510021258/republican-study-committee-dumps-derek-khanna-author-copyright-reform-brief-after-members-complain.shtmlthoughtful policy brief on copyright reform to come out of US government offices in a long time, has been let go from his job. There was expected to be some staff turnover in January, as the new RSC leadership took place, but several Republican members of Congress explicitly asked incoming RSC boss Steve Scalise not to retain Khanna in response to the copyright brief.

If this is how the "new" GOP expects to interest young people, it seems to be going about it exactly backwards. Khanna wrote a thought-provoking paper that expressed views that many people believe to be true -- in a voice that is rarely heard in Congress. And, for that, he got fired. While the RSC and various copyright maximalists have been insisting that the paper was not properly vetted, we've had it confirmed that this is simply not true. The paper went through the standard procedure of any RSC brief, and was properly reviewed and vetted. It's just that once lobbyists hit the phones to various members of Congress (friends of Hollywood, mainly), pressure was put on the RSC to retract the document, and to jettison Khanna.

This is not going to interest very many young people, when a thoughtful critique of policy that finally raises issues that concern many leads to the staffer in question getting the axe. Khanna, for his part, has been valiantly continuing the conversation via his Twitter feed, but various lobbyists are now ensuring that elected officials can safely stick their fingers back in their ears.

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]]>not-how-to-attract-the-next-generationhttps://www.techdirt.com/comment_rss.php?sid=20121206/08510021258Tue, 4 Dec 2012 09:55:49 PSTFixing Copyright: Is Copyright A Part Of Free Market Capitalism?Mike Masnickhttps://www.techdirt.com/articles/20121204/02422821219/fixing-copyright-is-copyright-part-free-market-capitalism.shtml
https://www.techdirt.com/articles/20121204/02422821219/fixing-copyright-is-copyright-part-free-market-capitalism.shtmlreport on the problems of the copyright system and how to fix them (which it quickly retracted under industry pressure), today we're going to explore the second "myth" that author Derek Khanna helped debunk: that "copyright is free market capitalism at work." We've already covered the first myth, about the purpose of copyright, as well as responded to various responses to the report by copyright maximalists.

That response feeds nicely into this post, because the whole argument that copyright is "free market capitalism" depends almost entirely on the key claim of maximalists: that copyright is property, full stop. However, as we noted in our response, copyright has both property-like attributes and many non-property-like attributes. And it's when you look at the actual market that you have to recognize that those non-property-like attributes start to stand out. The only way you can argue that copyright is free market capitalism at work is to flat out ignore the ways in which copyright is unlike property.

To hopefully demonstrate this clearly, we'll start out with two examples of other "markets" that show that just because you set up a property right and create a market, that doesn't mean it's a free market. First up: air. Yes, that stuff we all breathe. It's clearly a valuable good. Extremely valuable. But... if we're to believe the maximalist view, because we don't directly pay for the air we breathe (even if we pay for it indirectly) it must be "valueless" or "worthless." So, clearly, the best way to deal with this is to set up a monopoly privilege in air -- such that you need to buy a "license" to breathe air that isn't yours.

Think of the massive industry that would be built up around this. It would really be a tremendously large industry, because people would be willing to pay every last penny to make sure that they had air to breathe. Talk about having inelastic demand! But, of course, the "problem" is that we have (mostly) abundant supply. Yet, putting monopoly rights on it would solve that problem right away, restricting supply through artificial monopolies, and allowing owners to charge. Boy, would that create a market! Of course, it would be complex, so perhaps we could "ease" things along by creating an Airrights Royalty Board to set some compulsory rates to make the whole market function "better." Think of how we could juice the economy there! Every single person needs air, so they would pay. Clearly, overnight, it would boost the economy.

Of course, this is silly. Everyone knows that it's silly, but as you listen to the arguments for copyright as being a free market, recognize that it's no different than the scenario above. The problem is basically a restating of Bastiat's broken window parable. The government can introduce artificial inefficiencies into the market, but that doesn't mean that it's part of a free market. A free market is one in which resources are being allocated more efficiently. But a market in which you have entities choosing to introduce inefficiencies on purpose to create new markets isn't a "free market" at all. It just creates an inefficient market that draws money to that market and away from more efficient purposes and allocation. You can, if you want, argue that this government / market interference is good for society or a particular group -- but you cannot argue that it's "free market capitalism" because it's not.

The second example is similar. It's the idea that Ed Felten came up with a few years back, known as the Pizzaright Principle, which stated simply is:

Pizzaright – the exclusive right to sell pizza – is a new kind of intellectual property right. Pizzaright law, if adopted, would make it illegal to make or serve a pizza without a license from the pizzaright owner.

Creating a pizzaright would be terrible policy, of course. We’re much better off letting the market decide who can make and sell pizza.

The Pizzaright Principle says that if you make an argument for expanding copyright or creating new kinds of intellectual property rights, and if your argument serves equally well as an argument for pizzaright, then your argument is defective. It proves too much. Whatever your argument is, it had better rest on some difference between pizzaright and the exclusive right you want to create.

This is the same basic concept again. You can create new artificial markets by inserting property-like rights anywhere you want. But most people in other situations recognize that's not free market capitalism at all, but market distorting interference. So, as you listen to those who argue that copyright is free market capitalism, apply these tests. Does it apply equally to airrights and pizzarights? If so, the argument is defective. To date, I have yet to hear an argument for copyright being free market capitalism that doesn't equally apply to airrights or pizzarights.

Of course, there are other important ways in which copyrights are actually against the free market -- and, again, it's here where recognizing the key differences between copyright and scarce property come into play. As Rick Falkvinge recently reminded us, copyright is something that actually limits property rights rather than creates new ones:

Which brings us to the third notable item: “the exclusive right”. This is what we would refer to colloquially as a “monopoly”. The copyright industry has been tenacious in trying to portray the copyright monopoly as “property”, when in reality, the exclusive rights created are limitations of property rights (it prohibits me from storing the bitpatterns of my choosing on my own hardware).

This is a key point that often gets lost in all of this. The only thing that copyright does is limit others' actual property rights. Now, again, this doesn't mean you can't make an argument that this limitation is valuable and important. But it's a simple fact that all the "exclusive right" copyright provides to someone is a way to try to stop people from actually exercising their own property rights over products they own.

In the end, it's fine to argue that copyright has important benefits and value -- but that's not the same thing as arguing that it's a part of free market capitalism. Because it's not.

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]]>not even closehttps://www.techdirt.com/comment_rss.php?sid=20121204/02422821219Mon, 26 Nov 2012 10:15:00 PSTCopyright Maximalists Attempt To Downplay Significance Of RSC Report By Chanting Their Mantra: Copyright Is PropertyMike Masnickhttps://www.techdirt.com/articles/20121121/23215021120/copyright-maximalists-attempt-to-downplay-significance-rsc-report-chanting-their-mantra-copyright-is-property.shtml
https://www.techdirt.com/articles/20121121/23215021120/copyright-maximalists-attempt-to-downplay-significance-rsc-report-chanting-their-mantra-copyright-is-property.shtmlreport on copyright myths and how to fix the broken system. We already explored the first myth the paper discusses, that the purpose of copyright is to compensate the creator. That has simply never been true. The purpose is laid out plainly: "to promote the progress of science and the useful arts." And if you really want to go back to the original meanings of all of this, the "science" part is what copyright was talking about, and they really meant for it to cover learning. It was not originally intended for all creative content at all. That's a later bastardization. Even so, it's pretty clear that the purpose of copyright was to "promote the progress." The mechanism was to create an artificial scarcity, via exclusion, that helped support one possible business model for content creators: selling copies of their works for a limited time. That's it. The purpose: promote the progress. The mechanism: artificial scarcity. The problem is when people confuse those two and assume the "mechanism" is the purpose. Tragically, that's what happens all too often.

After we published the initial post on this, some complained that we weren't giving "the other side" fair hearing. So with this post, I wanted to highlight three responses from copyright maximalists, who claim that the arguments made in the RSC paper are faulty. It's important to understand what is being said and where these arguments come from. Let's start with Tom Giovanetti, the man who once called me a "bolshevik" for suggesting that copyright reform was necessary. Amusingly, Giovanetti appears to take credit for getting the RSC to pull the document, though we know that those with much more significance made the calls that actually had an impact. However, Giovanetti's dismissal of the RSC paper is based on one adamant statement: that copyright is property. Period. End stop. No questions.

Rather, it's because, as a property right, copyright is a critical element within the GOP's market-orientation. Markets simply don't work without property rights. You can't have contracts, or licensing, if you don't have clear and enforceable property rights. ALL business models, not just "new" business models, rest on property rights.

This is one of those "nice in theory, totally not true in practice" claims. Here's the thing: copyright has some elements that are "property-like." It allows legal exclusion, like property. It can be sold and transferred, like property. But it has many facets that are not at all like property. The content in question is non-rivalrous and non-excludable for the most part. That's not at all like property. Anyone who defines it as property, without acknowledging the "non-property-like" attributes, is either ill-informed or being purposely misleading. I'll leave it to the reader to determine which is the case here.

As for the idea that all business models "rest on property rights," that's an interesting argument, but again one not supported by reality. Many business models are built on real property rights -- that is, property rights around scarce goods, which are excludable and rivalrous -- but when it comes to non-scarce or infinite goods, there are lots of new business models generated, often by increasing the value of different scarcities. To prove Giovanetti wrong is easy. You just point to any one of the the many content creators who give away their works for free, and profit elsewhere. Hell, point to us. You're reading this for free, and we're making money -- without relying on the "property right" of copyright. Are we relying on some other property rights? Sure. Property rights for real, scarce, property.

And that's the real problem with those who just default to the "copyright = property" argument. It's silly and it's meaningless, because the fact that you can't necessarily rely on copyright for all your profits does not mean there aren't other property rights by which you can make money. In fact, history has shown time and time again that when something is subject to unfettered copying, new business models appear elsewhere.

Further, because the GOP believes in innovation, copyright is a natural fit, because copyright incentivizes and encourages the creation, distribution and promotion of new information. The alternative to copyright isn't free information, but less creation, less widely distributed and marketed.

This is also empirically untrue. Giovanetti seems to want to tell fairy tales by ignoring the actual evidence. Over the last decade, at a time when copyright infringement has been widespread, the amount of content created has skyrocketed at unprecedented rates, and that content has been much more widely distributed and marketed, thanks in part to new technologies.

Furthermore, if we're going to go hardcore "property rights," then it would seem that Giovanetti should really be supporting the copyright reformers, since current copyright reform tramples on property rights all the time. My DVR can't automatically skip commercials. But I paid for it. Why can't I have it do what I want it to do? I bought this DVD, why can't I legally move the content to my computer to watch it? I bought this book in Thailand, why can't I now sell it in the US? These are all issues where copyright is currently invading my property rights. Now, you can make an argument that these are reasonable restrictions on my rights, but if you're going to just scream "property rights" like Giovanetti does, you would think that it's only fair to highlight the ways copyright intrudes on property rights as well. But he doesn't. So, it's difficult to take Giovanetti seriously on this point at all. And since his entire argument is based on this fallacy, let's just move on.

Next up, we've got the Copyright Alliance, a lobbying organization that was set up to protect large studios and record labels' interests while pretending to support creators' interests. They brought along a law professor named Mark Schultz, who you would hope would understand the law, but in fact has a rather simplistic argument that not only falls into the same Giovanetti trap of "but, but, but copyright is property," but goes further in arguing that copyright reformers are really just a bunch of evil "collectivists" seeking to redistribute property from those who rightfully own it to anyone else.

The people who create expressive works deserve to own them and benefit from them. So do the companies that finance and purchase these works for commercial exploitation.

Note that we're already starting off on a bad foot, where the entire basis of the argument is a purely moral one -- that people "deserve" to "own" expressive works. But this statement, beyond pulling at the moral question rather than anything factual, suffers from significant problems. First, what is the "them" that people "deserve" to own? The original work? Sure. But, just as a candlemaker owns that candle, once he sells it to someone else, he no longer "owns" that candle. So, this is a pretty weak starting point. All copies of the work down the line? Well, that's a problem too. Because if I buy that candle, I can make a copy, and I'm not violating anyone's rights in the tangible world. So, already we seem to be stepping beyond the normal bounds of how these things work. But we're just beginning down a weird rabbit hole stuffed to the brim with strawmen that Schultz wants so badly to knock down:

Many modern copyright scholars and commentators have embraced a severe utilitarian view of copyright. In this view, the sole justification for copyright is the benefit that creators provide to society. Society would benefit most if creators worked for free, but, alas, we cannot always convince them to do so. Copyright is thus an unfortunate necessity, given to creators to induce them to provide society what it needs. The labor or welfare of creators has no importance under this view—they and their works exist to serve the good of the greatest number.

I know of no person, on any side of this debate, who has argued that "society would benefit most if creators worked for free." What many of us have argued is that there are more compelling and useful business models from which they can benefit, while also providing greater societal benefit. In economics, it's called increasing the pie. But people like Schultz, who perhaps have little background in economics, seem to think that this is a zero sum game -- and if anyone else benefits, it means the content creator must be losing. Reality says something quite different. You can expand the pie such that the creator can benefit, and profit, and so can society. That's what many of us are aiming towards.

Furthermore, the claim that "copyright is a necessity" to incentivize creation once again ignores the fact that there are other, significant business models that don't rely on copyright at all. It's difficult to take someone seriously when they set up a strawman that reflects an argument no one is actually making... and then knock it over with an even sillier argument that ignores the reality of the market.

As between creators (along with those who finance and/or purchase the rights to their work) and others, who has a better claim to control and exploit a work of authorship? Of course, to a dedicated IP utilitarian, this question is irrelevant. Nobody deserves anything; society takes what it needs, subject to the need to persuade the producer to keep producing what the takers want. While such a churlish and ungenerous view of creators is apparently acceptable to some, many would find the implications chilling.

Again, this is a pure strawman, made up in the fantasy world that lives in Schultz's mind. I've never seen anyone argue that "society takes what it needs." But he's right that the question he's asking is irrelevant. He's asking who is best to "control and exploit" something that does not need to be controlled or exploited in the manner he suggests. As an analogy, it is like he is saying "who better to control and exploit the road in front of your house, than the house owner?" You could legitimately make that argument. But, of course, we don't think of the road in front of your house as being something that someone needs to "exploit." Why? Because it is a piece of infrastructure that creates much greater benefit for everyone, such that they can profit. This is not a case of taking away rights from someone to make them worse off. It is about using core infrastructure to increase the pie and make greater opportunities for everyone. When viewed that way, you can see where focusing on the direct exploitation of each work is pretty silly. What if, instead, the system that works is one in which the music enables many other business models that allow for greater profits?

So, Schultz's argument is based on the same basic fallacy as Giovanetti's, just at a slightly higher intellectual level. Rather than just focusing on "copyright is property," Schultz is arguing both that copyright is property, and that we live in a zero sum world. Since neither point is true, his argument falls apart entirely. Moving on.

The final stop on our tour of rationalization comes from Terry Hart's Copyhype blog, where he kicks it off with a bizarre, and entirely false statement about me, claiming that I stated I will "no longer be able to enjoy future papers, for they will only pale in comparison." I said no such thing, nor do I believe any such thing. Hart is usually quite careful in his statements, and the fact that he needs to resort to an outright lie to kick off his post should give you a sense of where he's going to come from with his attack on Derek Khanna's paper.

Most of Hart's arguments are based on taking snippets of quotes from people in the past to argue "nuh-uh" to things in Khanna's paper. That is, rather than argue reality, let's focus on what someone said years ago if it disagrees with the paper. That's not particularly convincing. It is not difficult to come up with just as many quotes from people arguing the opposite viewpoint at the same time. So, for example, he quotes some people arguing that copyright is property -- both among the Founders and more recently at the Supreme Court. But, it is equally true that there were Founders who believed copyrights to be evil monopolies, and there are Supreme Court rulings that state that copyright is not like property. So, I'm not sure what good random quotes (sometimes out of context) do for this argument.

But then we get to the crux of Hart's argument, which presents a rather troubling and misguided understanding of innovation in capitalist societies:

One of the favorite claims of copyright skeptics is that creators routinely oppose new technology because it “disrupts their business model.” On the contrary, it is often the case that the businesses utilizing the new technology are the ones who feel entitled — entitled to profit off the exploitation of established rights without compensating creators merely because they are using new technology. In this case, creators do “deserve” compensation. This isn’t a prize at the bottom of the box, it’s one of the foundations of a just capitalist society.

Note that we're taking a step up the intelligence scale here from Schultz, but basically making a more advanced version of the same argument: that someone "deserves" something. Again, this is a moral argument that distracts from the point and is hard to support in reality. Second, there is a major assumption in that paragraph that is simply untrue: the idea that companies "feel entitled to profit... merely because they are using new technology." Nothing could be further from the truth, especially in a "just capitalist society." In such worlds, there is no "entitlement" to profit. There is merely what you can get in the market. What many new companies are doing is not feeling entitled to profits because of new technologies, but using new technologies to create economic growth and then using that economic growth to put in place a business model in which people or companies transact with them willingly, such that they can profit.

That is how capitalism works.

What many maximalists seem to fail to understand is that these new technology providers increase the pie. They create economic growth through new technologies and services, and they profit from some of that, but also leave open much of that expanded market for others to profit. This is true throughout history. I know that Hart, in particular, tends to break out in hives (a joke) whenever anyone brings up the "VCR," but it's an instructive example. The movie industry insisted that it was allowing consumer electronics companies to "profit off the exploitation of established rights without compensating creators merely because they are using new technology." And, yes, while Hart would like to scrub this point from history, Jack Valenti did say that the VCR was to the American filmmaker what the Boston Strangler was to the woman at home. It was, as Valenti was making clear, supposedly going to kill the industry.

But it didn't. It was merely five years after Valenti said those words during a Congressional hearing that revenue to the Hollywood studios from home movies surpassed the box office. Five years. And it didn't require a new law. Or forcing these "tech companies" to pay the rights holders what they "deserved." No, instead all it took was the entertainment industry adapting to the new technology and realizing that the pie grew. Massively.

Amusingly, in his let's forget Jack Valenti post from last year, Hart had the following to say about the "myth" that copyright reformers build around Valenti's testimony:

the myth that “content industries hate technology” fails for several reasons. It requires fabricating a group (“the content industry”), ascribing a broad characteristic to it (“hates technology”), and then pulling together disparate quotes from anyone who has stated a concern over some new technology as proof of the theory.

Yet, of course, that's the exact same thing that Hart does in his post trying to debunk Khanna's paper. He fabricates a group ("the tech industry") ascribes a broad characteristic to it ("feels entitled to profits that others deserve because of new technology") and then pulls together disparate quotes as proof of that theory.

So, while I find Hart's critique of Khanna's work informative in surfacing a few interesting historical quotes, it too fails for the same basic reasons as the other two responses cited above.

That said, I appreciate that they are willing to jump in to the debate, and find it sad that members of Congress, whether Republican, Democrat or anything else, have decided that it's not even worth having this debate at all.

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]]>you can say it as many times as you want and it's still not truehttps://www.techdirt.com/comment_rss.php?sid=20121121/23215021120Wed, 21 Nov 2012 09:09:52 PSTFixing Copyright: The Purpose Of CopyrightMike Masnickhttps://www.techdirt.com/articles/20121120/18240721105/fixing-copyright-purpose-copyright.shtml
https://www.techdirt.com/articles/20121120/18240721105/fixing-copyright-purpose-copyright.shtmlchicken out on holding the very necessary debate on copyright reform, let's keep the debate going without them, and hope they join in. As we've discussed, the Republican Study Committee released a fantastic report from staffer Derek Khanna, and then retracted it under lobbyist pressure. The RSC wants to claim that the paper didn't go through its full review process, but we've heard from multiple sources that this is simply not true, and that the RSC is pushing this story to appease angry lobbyists (apparently the US Chamber of Commerce has taken over as the leader of the cause on this one, following the initial complaints from the MPAA and RIAA). Either way, all this has done is draw much more attention to the report, which you can still read here.

But, clearly, some in Congress realize this is a debate worth having. So if they're too afraid of some industry lobbyists, we might as well kick off that debate for them. We're going to do a series of posts digging into Khanna's paper. The paper, of course, starts off by debunking three commonly believed myths concerning copyright law, which are often used by policy makers to justify bad policies.

The purpose of copyright is to compensate the creator of the content:
It's a common misperception that the Constitution enables our current legal regime of copyright protection -- in fact, it does not. The Constitution's clause on Copyright and patents states:

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (Article I, Section 8, Clause 8)

Thus, according to the Constitution, the overriding purpose of the copyright system is to "promote the progress of science and useful arts." In today's terminology we may say that the purpose is to lead to maximum productivity and innovation.

This is exactly correct, as we've discussed numerous times before. This is not to say that one of the results of copyright law is to compensate the creator. That's clearly a large part of how the law is supposed to function. The thinking behind this is not too complicated: if we can ensure greater compensation through limiting competition and supply via artificial monopolies, it drives up the price of those goods, leading to greater income.

But that theory includes several assumptions which may not be true. Let me present a hypothetical to make the point. I am not saying this is absolutely the case, but let's say we have scenario A and scenario B:

Scenario A
Artist's works are locked up under copyright, but he sells them for $1 per song downloaded.
Fans pay for and download 100 songs.

Scenario B
Artist frees up his work to the public domain, and encourages them to be spread freely.
Thousands of copies of the song are downloaded.
Artist sets up a Kickstarter to fund next batch of songs, and quickly raises $10,000

Again, I'm not saying that this is what happens in all cases. I'm just making this point: I don't believe that a single, sane person would argue that scenario A is better than scenario B. In scenario B the artist has more fans, more ability to make new music and more money. It's a much better position. But that income does not rely on copyright.

And that's the simple point that seems to get lost in this debate. Because copyright exists and is so prominent in the business model of artists, many incorrectly believe that it is the business model for content creators, and there can be no other. But, what we've really done is set up a crutch. Because the government has "picked winners and losers" by backing copyright as the core piece of a business model, most content creators have focused almost exclusively on monetizing via copyright. And thus, they argue, any attempt to change copyright is an attack on their incomes.

But, if we all agree that scenario B is a better scenario for the artist and for the consumer, then we've already shown that copyright, itself, may not be the best tool for artists seeking to make a living. I'm not saying that it absolutely isn't -- but that we have little evidence that copyright is actually the best such tool, and plenty of evidence that it can stifle and limit speech and creativity along the way.

There are many ways to make revenue as an artist. The Future of Music Coalition's Artist Revenue Streams worked out 42 different revenue streams for artists. Certainly, many of them rely on copyright, but a significant number do not. But content creators rarely get the chance to fully explore those other methods, because they're so wed to the idea that copyright is it.

Either way, if the idea is to maximize artist revenue, then we should be looking at what actually does that -- what actually results in greater artist revenue? Because there is no evidence that expanding copyright law seems to have that impact.

So all Khanna and the Republican Study Committee (briefly) were saying, was that the purpose of copyright law is to benefit "the progress of science and the useful arts." Part of that certainly may be to help artists make money, but that is not the ultimate goal, nor would it be reasonable as the ultimate goal. If we want to maximize artist revenue, let's explore that issue, but just assuming that's the goal of copyright is clearly faulty, leading to a very distorted market.

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]]>holding-the-debatehttps://www.techdirt.com/comment_rss.php?sid=20121120/18240721105Mon, 19 Nov 2012 08:46:45 PSTDon't Let Retraction Distract From The Simple Fact: GOP Copyright Policy Brief Was BrilliantMike Masnickhttps://www.techdirt.com/articles/20121118/23364521085/dont-let-retraction-distract-simple-fact-gop-copyright-policy-brief-was-brilliant.shtml
https://www.techdirt.com/articles/20121118/23364521085/dont-let-retraction-distract-simple-fact-gop-copyright-policy-brief-was-brilliant.shtmlpulled its report on copyright reform after some entertainment industry lobbyists hit the phones/emails late Friday/early Saturday (and, no, it wasn't directly to RSC, for the most part, but to "friendly" members asking them to express their "displeasure" with the report to the RSC leadership). But we shouldn't let that distract from the simple fact that the report was brilliant -- perhaps the most insightful and thoughtful piece of scholarship on copyright to come out of a government body in decades. You can still read the whole thing as uploaded to Archive.org.

It seems unlikely that the RSC will bring it back, despite the quality of the report. But one hopes that the massive outpouring of support (seriously, just check Twitter) will lead politicians from both parties to recognize that sensible and smart copyright reform is a topic that gets people excited -- and one thing they're sick of is decades of both parties simply falling all over themselves to distort copyright to favor a few dominant Hollywood players.

Because the GOP has chickened out, we're going to try to do a series of posts analyzing the various aspects of the report, starting with the three myths about copyright it debunks, followed by four policy recommendations, to see if we can further the discussion. Look for those posts in the coming days and weeks.

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]]>don't forget ithttps://www.techdirt.com/comment_rss.php?sid=20121118/23364521085Sat, 17 Nov 2012 16:59:26 PSTThat Was Fast: Hollywood Already Browbeat The Republicans Into Retracting Report On Copyright ReformMike Masnickhttps://www.techdirt.com/articles/20121117/16492521084/that-was-fast-hollywood-already-browbeat-republicans-into-retracting-report-copyright-reform.shtml
https://www.techdirt.com/articles/20121117/16492521084/that-was-fast-hollywood-already-browbeat-republicans-into-retracting-report-copyright-reform.shtmlsurprisingly awesome report about copyright reform. You can read that post to see the details. The report had been fully vetted and reviewed by the RSC before it was released. However, as soon as it was published, the MPAA and RIAA apparently went ballistic and hit the phones hard, demanding that the RSC take down the report. They succeeded. Even though the report had been fully vetted and approved by the RSC, executive director Paul S. Teller has now retracted it, sending out the following email to a wide list of folks this afternoon:

We at the RSC take pride in providing informative analysis of major policy issues and pending legislation that accounts for the range of perspectives held by RSC Members and within the conservative community. Yesterday you received a Policy Brief on copyright law that was published without adequate review within the RSC and failed to meet that standard. Copyright reform would have far-reaching impacts, so it is incredibly important that it be approached with all facts and viewpoints in hand. As the RSC’s Executive Director, I apologize and take full responsibility for this oversight. Enjoy the rest of your weekend and a meaningful Thanksgiving holiday....

The idea that this was published "without adequate review" is silly. Stuff doesn't just randomly appear on the RSC website. Anything being posted there has gone through the same full review process. What happened, instead, was that the entertainment industry's lobbyists went crazy, and some in the GOP folded.

Frankly, if they wanted to win back the youth vote, this was exactly how not to do it. If you just look through the comments on our post on the original, or through the Twitter response to this report, there were tons of people -- many of whom were lifelong Democrats -- claiming that they would switch parties if the GOP stuck with this. Instead, they folded like a cheap card table in less than 24 hours.

In the long run, that's going to hurt the GOP, because the people who were suddenly interested in supporting the GOP will assume that any such effort is subject to a similar bait-and-switch. Meanwhile, this leaves open an opportunity for the Democrats as well. The Republicans just came close to becoming the party that actually listened to what was important to young people today -- and they quickly changed their mind. The Democrats can sweep in and take the issue since apparently it's there for the taking. All they have to do is be willing to tell some Hollywood lobbyists to pipe down.